dismissed EB-3 Case: Social Work

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U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
FIL Office: CALIFORNIA SERVICE CENTER Date: SE~ 2 6 2M8 
WAC 02 245 548 17 
PETITION: Immigrant petition for Alien Worker as a Skilled Worker or Professional pursuant to section 
203(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 5 1 153(b)(3) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned to 
the office that originally decided your case. Any further inquiry must be made to that office. 
iobert P. Wiemann, Chief 
Administrative Appeals Office 
DISCUSSION: The Director, California Service Center revoked approval of the preference visa petition that 
is now before the Administrative Appeals Office on appeal. The appeal will be dismissed. 
The petitioner is a social change organization. It seeks to employ the beneficiary permanently in the United 
States as its Director of Hispanic Services. As required by statute, a Form ETA 750, Application for Alien 
Employment Certification approved by the Department of Labor accompanies the petition. The director 
determined that the petitioner had not established that the beneficiary has the college degree required by the 
preference classification for which the petitioner applied and denied the position accordingly. 
On appeal, counsel submits a statement. 
Section 203(b)(3)(A)(ii) of the Immigration and Nationality Act (the Act), 8 U.S.C. fj 1 153(b)(3)(A)(ii), 
provides for granting preference classification to qualified immigrants who hold baccalaureate degrees and 
are members of the professions. 
Section 203(b)(3)(A)(i) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
 1153(b)(3)(A)(i), 
provides for granting preference classification to qualified immigrants who are capable, at the time of 
petitioning for classification under this paragraph, of performing slulled labor (requiring at least two years 
training or experience), not of a temporary nature, for which qualified workers are not available in the United 
States. 
The regulation at 8 C.F.R. fj 204.5(1)(2) states, in pertinent part: 
"Professional means a qualified alien who holds at least a United States baccalaureate degree or a foreign 
equivalent degree and who is a member of the professions." 
The regulation at 8 C.F.R. fj 204.5(1)(3)(ii)(C) states, in pertinent part: 
Professionals. If the petition is for a professional, the petition must be accompanied by 
evidence that the alien holds a United States baccalaureate degree or a foreign equivalent 
degree and by evidence that the alien is a member of the professions. Evidence of a 
baccalaureate degree shall be in the form of an official college or university record showing 
the date the baccalaureate degree was awarded and the area of concentration of study. 
If the petition is for a professional pursuant to 8 C.F.R.$204.5(1), then, the petitioner must demonstrate that 
the beneficiary received a United States baccalaureate degree or an equivalent foreign degree prior to the 
priority date, the day the Form ETA 750 was accepted for processing by any office within the employment 
system of the Department of Labor. Here, the Form ETA 750 was accepted for processing on December 22, 
1998. The Form ETA 750 states that the proffered position requires four years of college and a bachelor's 
degree or the equivalent,' and eight years of experience in the proffered position or the related field of 
community development. 
1 
 In the space reserved to state the college degree required the petitioner entered, "B.A. (equiv.). In the space reserved 
to state the major course of study of the required degree the petitioner entered, "Social Work." 
Page 3 
With the petition, counsel submitted no evidence pertinent to the beneficiary's education. Because the 
petitioner failed to demonstrate that the beneficiary has a baccalaureate degree, the California Service Center, 
on October 24, 2002, requested additional evidence. The Service Center specifically requested that the 
petitioner, "Submit evidence to establish that the beneficiary possesses the educationhaining listed on the 
Form ETA 750 (Application for Alien Employment Certification.)" and further, "If a baccalaureate degree is 
required, submit a copy of the official college or university transcript." [Emphasis in the original.] 
In response, counsel submitted an educational equivalence evaluation dated October 3, 1994 and a letter dated 
December 18, 2002. The evaluation states, in essence, that the beneficiary's employment experience is 
equivalent to a bachelor's degree in social work from an accredited college or university in the United ~tates.~ 
In his December 18, 2002 letter counsel stated, "we are including the education equivalent letter confirming 
that the beneficiary has the equivalent of a baccalaureate degree." [Emphasis in the original.] 
The petition was approved on January 17, 2003. On February 11, 2003 the beneficiary submitted a Form I- 
485 application to adjust status. In adjudicating the Form 1-485 the service center determined that the 
beneficiary does not have the requisite college degree and that the Form 1-140 petition had been approved in 
error. On November 18, 2004 the service center issued a Notice of Intent to Revoke in this matter on that 
ground. 
In response counsel submitted a letter dated December 16, 2004. In his letter counsel cites Richards v. INS, 
554 F.2d 1173 (1977) and Augat, Inc. v. Tabor, 719 F.Supp. 1158 (1989) for the proposition that failure to 
consider experience in assessing whether a person is a professional with a baccalaureate degree is arbitrary, 
capricious, and an abuse in discretion. 
Counsel argued, 
The petitioner's labor certificate required a baccalaureate degree or its "equivalent." Thus, 
from the onset the employer avowed that an equivalent in experience and training would meet 
its requirement for the listed position. Specifically, the labor certificate lists 8 years in 
experience in community development as sufficient to meet its requirement. 
Counsel further argued, in the alternative, that the instant visa petition should be considered as a petition for a 
skilled worker pursuant to section 203(b)(3)(A)(i) of the Act. 
The director determined that the evidence submitted did not establish that the beneficiary has a United States 
baccalaureate degree or an equivalent foreign degree, and, on February 1,2005, denied the petition. 
On appeal, counsel reiterated his assertion that the petition should be considered as a petition for a skilled 
worker. 
Counsel cites Richards v. I.N.S., supra for the proposition that, 
The evaluator stated that he was basing his opinion on the equivalence of three years of experience to one year of 
education. 
Page 4 
(F)ailure to allow experience to assess whether a person is a professional with a baccalaureate 
degree is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 
the law." 
Richards is a case in which a student visa was denied to an alien who failed to maintain his visitor visa. It 
does not pertain to the instant visa category. Further, as that case was decided against the alien any language 
decrying the reasonableness of the government's decision or the sufficiency of its basis would be, at best, 
dictum. Further still, decisions of a U.S. Circuit Court of Appeals are binding precedent only within 
jurisdiction of the court that decided the matter. Finally, this office notes that that case does not address 
consideration of experience in the determination of whether a beneficiary qualifies as a professional. The 
opinion in that case in no way supports the proposition for which counsel cited it. 
Counsel further cites Augat, Inc. v. Tabor, 719 F.Supp. 1158 (1989), for the proposition that a beneficiary can 
qualify as a professional under the EB-3 category even without a bachelor's degree based upon experience 
equivalent to the required degree. 
In Augat, Inc. v. Tabor, supra, the petitioner sought an EB-3 immigrant visa, as in the instant case. In that 
case the court found that, although the proffered position was for a professional, the beneficiary was qualified 
by virtue of his experience, notwithstanding his lack of a college degree. This is clearly the more salient of 
the cases cited by counsel. 
That case is still distinguishable from the instant case. The text of that case contains no indication that the 
approved labor certification in that case required a bachelor's degree. In fact, the petition appears to have 
been denied because the proffered position did not require a bachelor's degree and was found, therefore, not 
to be a professional position within the meaning of sections 101(a)(32) and 203(b)(3)(A)(ii) of the Act. 
Whether the approved labor certification in that case specified that the position required a bachelor's degree 
remains unclear. 
Further, the law in effect at the time of Augat, did not, as it does now, specifically require a degree (See 
203(b)(3)(A)(ii) of the Act.) for the professional category. The Act has been specifically amended to require 
a degree. 
The labor certification in this case states that the proffered position requires four years of college culminating 
in a "B.A. (equiv.)" in social work. The evidence indicates that the beneficiary has no such education or 
degree. Counsel argues that the beneficiary's employment experience qualifies him for the position, 
notwithstanding that it would ordinarily require a bachelor's degree. 
The regulation at 8 C.F.R. 9 204.5(k)(2) allows an alien to substitute a bachelor's degree plus five years of 
progressive experience for an advanced degree. The regulation at 8 C.F.R. 214(h)(2)(iii)(D)(5) permits the 
substitution of three years of experience for one year of college for special occupation nonimmigrants. 
Clearly CIS' predecessor agency was capable of issuing regulations providing for the substitution of 
experience for education in a limited context. Despite this capability, no such provisions appear at 8 C.F.R. 
9 204.5(1) and its subparagraphs relating to professionals and skilled workers. 
Page 5 
Although the regulations pertinent to nonimmigrant petitions explicitly permit the substitution of experience for 
education and a degree, the laws and regulations applicable to the visa category in the instant case sanction no 
such substitution of experience for education and a degree and provide no formula pursuant to which such 
experience might be credited in lieu of education and a degree, and no such regulation or equivalence will be 
construed. 
The only regulation specifying the equivalent of a bachelor's degree in the context of immigrant petitions is 8 
C.F.R. 5 204.5(1)(1), which states that a "United States baccalaureate degree or a foreign equivalent degree" 
qualifies a beneficiary for a professional position pursuant to section 203(b)(3)(A)(ii) of the Act. That regulation 
makes clear that the only equivalent for a U.S. bachelor's degree, in that context, is an equivalent foreign 
degree. No such equivalent is available if the petition is analyzed as a petition for a skilled worker. No 
criterion exists pursuant to which the beneficiary's experience, or experience coupled with education, absent 
the requisite bachelor's degree, may be analyzed to see whether it is equivalent to that requisite degree. 
The petitioner was free to specify on the Form ETA 750 the qualifications that it would accept as equivalent 
to a bachelor's degree.3 Counsel urges that, in stating that the position requires eight years of education, the 
petitioner was specifying just such an equivalent. This office, however, does not read the Form ETA as 
stating those requirements in the disjunctive. The Form ETA 750 appears to require four years of college and 
a bachelor's degree in social work and eight years of experience, rather than one or another of those 
requirements. 
Had the petitioner specified an acceptable substitute for the requisite bachelor's degree in this case, that 
would have opened the position to U.S. workers without degrees. Although those non-graduate workers may 
have been excluded from consideration for the proffered position, the petitioner now seeks to hire an alien 
worker without such a degree. The purpose of the instant visa category is to provide alien workers for U.S. 
positions, but only if qualified U.S. workers are unavailable. To permit the petitioner to alter the terms of the 
approved labor certification such that the beneficiary is eligible for the petition after the petitioner may have 
excluded U.S. workers with similar qualifications would frustrate the purpose of the visa category. 
The Acting Director was therefore correct in treating the petition as one for a professional, and in using the 
criteria in the regulation at 8 C.F.R. 8 204.5(1)(2) to evaluate the term "or equivalent" in the labor 
certification. 
If the instant petition is analyzed as a petition for a professional pursuant to section 203(b)(3)(A)(ii) of the Act it 
necessarily fails, as the regulation at 8 C.F.R. tj 204.5(1)(3)(ii)(C) makes clear that such a position requires a 
U.S. bachelor's degree or an equivalent foreign degree in social work, and the beneficiary does not have that 
required degree. 
If that the instant petition is analyzed as a petition for a slulled worker pursuant to section 203(b)(3)(A)(i) of 
the Act the result is the same. If the petition is considered as a petition for a skilled worker, the requirement as 
3 
 In that event the petition would be analyzed as a petition for a skilled worker pursuant to section 203(b)(3)(A)(i) of the 
Act. Because it would not, in that event, necessarily require a minimum of a bachelor's or equivalent foreign degree and 
would not, therefore, be a petition for a professional pursuant to section 203(b)(3)(A)(ii). 
stated on the ETA 750 for a bachelor's degree or the equivalent would be unaffected. The petitioner must 
demonstrate that the beneficiary is qualified for the proffered position pursuant to the requirements stated on 
the approved Form ETA 750 labor certification. See Matter of Silver Dragon Chinese Restaurant, 19 I&N Dec. 
401, 406 (Comrn. 1986). See also Madany v. Smith, 696 F.2d 1008 (D.C. Cir. 1983); K.R.K. Iwine, Inc. v. 
Landon, 699 F2d 1006 (9th Cir. Cal. 1983); Stewart Infra-Red Commissaly of Massachusetts, Inc. v. Coomey, 
661 F2d 1 (1st Cir. 198 1). 
The petitioner failed to submit evidence sufficient to demonstrate that the beneficiary has a United States 
baccalaureate or an equivalent foreign degree as is required by the Form ETA 750. The burden of proof in 
these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. fj 1361. The petitioner has 
not met that burden. The instant petition, submitted pursuant to 8 C.F.R.§204.5(1), may not be approved. 
ORDER: The appeal is dismissed.